Mahmoodshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant had a substantial criminal record, having been convicted of insurance fraud, which involved attempting to gain a benefit by fraud and gaining a benefit for another by fraud. The review was conducted by the Administrative Appeals Tribunal, with M Evans-Bonner SM presiding.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by section 501(6) of the Migration Act; and second, if the applicant did not pass the character test, whether there was another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations set out in Direction No 79. These considerations included the protection of the Australian community, the nature and seriousness of the criminal offending, the risk to the Australian community, the best interests of minor children, community expectations, the strength and duration of ties to Australia, and the impediments the applicant would face if returned to the United Kingdom.

The Tribunal reasoned that while fraudulent offending could cause harm, the low to minimal risk of the applicant reoffending meant this consideration weighed only slightly against revoking the visa cancellation. The Tribunal also considered the best interests of the applicant's four minor Australian citizen children, noting the applicant's evidence of close relationships prior to imprisonment and his efforts to maintain those relationships. The Tribunal ultimately found that there was another reason why the decision to cancel the applicant's visa should be revoked.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.